Mental capacity and consent assessments
An independent psychiatric opinion for solicitors on whether a person had, or has, the capacity to make a specific decision: to consent to treatment, to conduct litigation or to manage their damages, now or at a time in the past. Free initial screening call and fixed fees with no hidden charges.
- Section 12(2) approved
- Claimant, defendant and SJE
- Mental Capacity Act 2005
Capacity for a specific decision
Capacity questions arise throughout abuse and clinical negligence claims. Did the patient have capacity to consent to, or refuse, treatment at the time? Can the claimant conduct the litigation, or do they need a litigation friend? Can they manage a damages award, or is a deputy needed? Dr Pradhan assesses the specific decision at the relevant time.
She assesses cases where psychiatric disorder affects decision-making, where the presentation fluctuates, or where executive difficulties, psychosis, mood instability, cognitive disorder, medication or acute distress complicate the picture. The report explains how the condition affects the person’s ability to understand, retain, use or weigh the information and communicate a decision.
Dr Pradhan is section 12(2) approved, holds an MA in Medical Ethics and Law, and is instructed in Court of Protection work.
What the report covers
Capacity reports commonly address:
- Capacity to consent to, or refuse, treatment at the material time
- Retrospective capacity, from the records, at a past decision
- Capacity to conduct the litigation, and the need for a litigation friend
- Capacity to manage property and affairs, including a damages award
- Capacity to decide on residence and care
- The impairment of the mind or brain relied on
- Each element of the functional test, with the reasons
- Fluctuating capacity, and how to support decision-making
- The effect of delirium, psychosis, depression, medication or cognitive disorder
- Whether the person could make the decision with help
- Whether capacity is likely to change, and when to reassess
- Supplementary questions and joint statements
Send a note of the decision in question, the relevant date and the questions for the expert, and Dr Pradhan will confirm the scope of opinion and a fixed fee.
Submit an enquiryThe capacity questions in a claim
Capacity is decision-specific and time-specific. The report deals with the decision the instructions identify.
Consent to treatment
Whether the patient could make the treatment decision when it was made, which can matter to liability in a clinical negligence claim.
Litigation capacity
Whether the claimant can conduct the proceedings, or is a protected party who needs a litigation friend under CPR Part 21.
Managing damages
Whether the claimant can manage a damages award or, in England and Wales, needs a deputy appointed by the Court of Protection.
Other decisions
Residence, care and other decisions, where they arise from the injury and are in issue in the case.
The Mental Capacity Act and the court
In England and Wales, a person must be assumed to have capacity unless it is established that they lack it, and an unwise decision does not of itself show a lack of capacity. The report applies the functional test to the decision in question and explains the reasons for each step, so that the court can reach its own conclusion.
Capacity to conduct proceedings is judged against the claim the claimant actually has, not the claim as their lawyers first framed it (Dunhill v Burgin [2014] UKSC 18). Scotland and Northern Ireland have their own law on capacity, and reports there are prepared to it. For claims in England and Wales the report is structured for CPR Part 35.
A person is unable to make a decision if they cannot understand, retain, use or weigh the information relevant to it, or cannot communicate the decision.
Related pages
Capacity questions
If your question is not answered here, call and Dr Pradhan will advise on scope and timescale.
Call 0121 752 6065Can capacity be assessed for a decision made in the past?
Yes. A retrospective opinion is based on the records, witness evidence and, where possible, an assessment, and the report explains how confident it can be.
Does a diagnosis of mental illness mean the person lacks capacity?
No. Capacity is about a specific decision at a specific time. A person with a serious mental illness may have capacity for one decision and not another.
Does the claimant need a litigation friend?
The report gives the psychiatric opinion on whether the claimant can conduct the proceedings. The decision is then for the court.
Does Dr Pradhan assess capacity to manage a damages award?
Yes, including, in England and Wales, whether the claimant needs a deputy appointed by the Court of Protection and whether that is likely to change.
How quickly can a report be delivered?
Usually 1–2 weeks from assessment, and urgent reports can often be provided in 2–5 working days where the papers and appointment can be arranged promptly.
Instruct Dr Pradhan on a capacity question
Send a note of the decision in question, the relevant date, the funding route and any hearing dates.
- Phone0121 752 6065
- Emailinfo@
doctorpradhan.co.uk - Consulting Rooms NationwideAbacus Court, Harborne, Birmingham B17 0HH
Please do not include medical records or a detailed personal history in this form. Dr Pradhan will confirm how to send the papers once the instruction is agreed.
Case enquiry
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Instructions are accepted from solicitors only. Read our privacy policy before sending personal information.
If the matter is urgent, call 0121 752 6065.